Allwyn Osbourne D''Mello vs Helen Kitty D''Mello

M.F. Saldanha, J.—It is perfectly permissible for a litigant to canvass an alternate pleas which, though at first blush appear to be inconsistent or contradictory, are virtually put forward because the law permits that even if one more of these fail that the party can still sustain the remaining ones. In matrimonial proceedings, for instance, where the validity of the marriage is called into question, it is still open to the petitioner to contend that even if the Court were to held that the marriage was not null and void and is, therefore, saved that a decree of dissolution of marriage on some other grounds could be passed. Though it would prima facie, appear that the pleas are unsustainable insofar as if it is contended that the marriage was a void one that the question of dissolving it on some some other ground cannot arise and conversely that if a plea of dissolution is taken up that it presupposes a valid marriage. These submissions are made in the alternative to each other and without prejudice and are, therefore, permissible.

This appeal also raises the question of voidability of marriage on the ground of fraud. The principle of suppression veri and suggestio falsi encompasses both situations, the first being one where the truth is suppressed and the second takes into account a situation where a false representation is made. In matrimonial cases, the Courts are required to evaluate on allegations of fraud from the special angle that is applicable to a situation prevalent at the point of time at or prior to the marriage. If some very crucial fact, such as a congenital physical defect or a serious history of medical ailment of consequence or such other vital infirmity which is known only to the party concerned and which the rule of propriety would require that the opposite spouse ought to know, is suppressed the offending party would be guilty of fraud. The material in question will have to be vital and of such gravity that the Court may hold with a degree of certainty that had the disclosure been made, the Opposite Party would not have consented to the marriage. One such instance would arise in a case where the woman is sterile and, therefore, unable to bear a child. Even if one were to regard carriage as a relationship between two individuals built on love and companionship, the fact remains that it is also basically geared towards the essential objective of having a family in these circumstances where the factum of sterility has not been disclosed, it would undoubtedly, come within the legal definition of suppression of the truth and quality for a decree of nullity on the ground of fraud. To start with, the facts.

The first of these two appeals, Family Court Appeal No. 68 of 1992, has been preferred by the original petitioner-husband against the judgment and order dated 30.11.1991 of the Family Court at Bombay. The second of the two appeals, namely, Family Court Appeal No. 61 of 1992, is preferred by the respondent-wife whereby she contends that the Family Court has erred in passing a decree of judicial separation in favour of the original petitioner. The two appeals have been listed for hearing together. Having heard learned Counsel on both sides inconsiderable detail, we propose to dispose of both the appeals through common judgment.

The parties to these proceedings are Indian Christians professing the Roman Catholic Faith and are, therefore, governed by the provisions of the Indian Divorce Act, 1869. They were married according to the Christian rites and ceremonies on 24.2.1979 at Bombay. At the relevant time, the petitioner-husband was serving as a Foreman in Saudi Arabia. The respondent-wife was employed with the Bank of India and continues to be an employee of that Bank. Both the parties were unmarried and after the marriage they resided together for sometime at Jacob Circle at Bombay. According to the petitioner-husband, the wife did not accompany him to Saudi Arabia on the ground that she did not like the climate, that she did not desire to leave her employment, etc. as a result of which over the next few years, the petitioner-husband kept visiting India from time to time and spending short periods with the respondent-wife except for which she continued to reside in Bombay away from him. The pleadings set out a long series of unhappy incidents which ultimately culminated in the respondent-wife going to reside with her mother at Byculla and the petitioner-husband finally approaching the Court for a dissolution of the marriage. We do not propose to enter into any elaborate debate with regard to the various incidents set out in the pleadings as also in the evidence because, in our considered view, most of this material is unnecessary having regard to the fact that the petitioner-husband would be entitled to the original relief asked for by him, namely, a decree of nullity. Briefly stated, it is his case that he was unaware of the background of the respondent-wife when he married her and that it was only much later on that he came to know that she was alleged to have been involved in several instances of an unhappy nature, both prior to her marriage and also after that. According to the petitioner-husband, the respondent-wife used to avoid sexual intercourse with him even during the short period of time that they spent together as far as possible on the pretext that she had to read the Bible and offer prayers. He further pointed out that inspite of the few occasions on which the parties did have sexual relations that the respondent-wife did not get pregnant. After a considerable lapse of time, the respondent-wife agreed to certain medical treatment, she was examined, she underwent a certain surgical operation and even thereafter it was disclosed that she was unable to bear a child. The petitioner-husband has made a specific charge in the petition to the effect that he was unaware of the fact that the respondent-wife was "sterilized" before the marriage and he contended with a degree of pain that this was obviously because of the type of activities in which she was alleged to have been indulging in. He contended that this has frustrated the basic purpose of the marriage contract, that this vital fact was deliberately withheld from him and, under these circumstances, that he is entitled to a decree of nullity. Furthermore, there is a double-barrel charge against the respondent-wife to the effect that she was including in promiscuous conduct, both before the marriage and, more importantly, right through the period when the petitioner-husband was in Saudi Arabia. He has also related the manner in which she was behaving in support of his contention that it is a case of adultery coupled with cruelty. Lastly, the petitioner-husband also pointed out that the respondent-wife having refused to live with him in Saudi Arabia and, even when he was in India, her having gone away to her mother''s place and having withdrawn from his company even on a number of occasions when she was residing in the same house with him that her conduct would come within the legal ingredient of "desertion". In sum and substance, therefore, he has contended that he was entitled to a decree of nullity, in the first instance, and in the alternative that he would be entitled to a decree of divorce.

The respondent-wife has, in her written statement and in evidence, vehemently denied everyone of the charges. It is material that she has admitted about the gynaecological infirmity, which was even surgically treated subsequently, but she has contended that it is false to state that she had got sterilized prior to the marriage. She has denied having indulged in any promiscuous conduct with any third party and she contended and maintained that the charges are all false.

The parties have given evidence and they have also examined certain witnesses in support of their respective cases. At the hearing before us, Mr. Rego, learned Counsel appearing on behalf of the husband and Mr. Pathak, learned Counsel representing the wife, have taken us through the entire material on record. Mr. Rego has relied very heavily on the decision of the Metropolitan Tribunal of the Archdiocese of Bombay, which is Exhibit ''D'' and which is virtually, the judgment of that Tribunal before which the husband has made an application for annulment of his marriage. The Tribunal had issued notice to the wife which admittedly was received by her, but she thereafter did not contest the proceedings. Regardless of this fact, since the Tribunal followed a very rigorous procedure, the evidence of the parties was recorded, the matter was examined in depth and the Tribunal has recorded its verdict in the form of a sentence, a certified copy of which was produced by the petitioner-husband Mr. Rego submitted on the basis of this document, that the Family Court was duty-bound to rely on the evidence and to pass a decree in favour of the petitioner-husband without insisting on any further material. Mr. Rego relied on Section 14 of the Family Court Act, 1984, we need to observe here that the Legislature has made a special provision in Section 14 of the Family Court whereby material that is relevant to the dispute before that Forum, even if not strictly admissible within the four corners of the Indian Evidence Act, can still be taken on record and relied upon. In the present case, we come much closer insofar as the decision of the Tribunal is almost on part with an earlier judgment which in any case would be admissible even under the provisions of the Indian Evidence Act, Sections 41 to 43 Regardless of the aspect of the matter, we do need to record that the learned Trial Judge was in error in having totally brushed aside this vital piece of evidence. We need to point out here that Mr. Pathak on behalf of respondent-wife sought to contend that even if that document is looked at, it does not absolve the party from establishing the case independently. Mr. Pathak submitted that the annulment decree of the Tribunal would not be good enough to entitle the petitioner-husband to any relief before the Family Court because the grounds on which that Tribunal has granted annulment of the marriage is, principally, on the ground of defective consent, i.e., lack of due commitment amounting to stimulation on the part of the respondent which according to Mr. Pathak is not one of the grounds that are provided for under the Indian Divorce Act. He, therefore, submitted before us that if the grounds were identical, perhaps, the submission canvassed by Mr. Rego would be unanswerable, but on the facts of the present case that the petitioner can drive no much assistance from that particular order. Mr. Rego has sought to counter the submission by pointing out that there are findings recorded in that order with regard to the calibre of the witnesses who were also examined before the Family Court and furthermore those findings indicate that the immoral acts alleged against the respondent-wife were validily proved. We do not propose to comment further with regard to this aspect of the matter because a lot has been argued by learned Counsel on both sides with regard to these charges and since as indicated by us earlier the petitioner-husband would be entitled to a decree of nullity on the grounds alleged, it is not at all essential for us to go into this material.

Mr. Pathak raised a parallel objection whereby he contended that the petition ought to have been dismissed on the ground that the relief asked for by the petitioner-husband are mutually destructive. He contended that if the petitioner-husband contends that the marriage is a nullity that there can be no question of praying fora decree of divorce and conversely that if the petitioner-husband prays for a decree of divorce, then it presupposes that there was a valid marriage and he cannot contend that he is entitled to a decree of nullity. Mr. Pathak sought to place reliance on a decision of the Madhya Pradesh High Court in the the case of Smt. Indubai and Another Vs. Jawaharlal and Another, , whereby the Court held that though the law permits alternative relief on inconsistent allegations, it does not permit inconsistent pleas. Pleas which are mutually destructive of each other are normally not allowed. We need to record here that the submission canvassed before us is thoroughly confused and totally without substance. What the petitioner-husband has submitted is that certain vital material was withheld from him and that if he has succeeded in establishing that this was so that he is entitled to challenge the foundational basis of marriage contract on the ground that such misrepresentation would bring it within the legal definition of the term "fraud" as applicable to matrimonial law. The petitioner-husband is certainly entitled to Advocate this plea and it goes without saying that in the event of his failing to succeed on this ground if there is additional material on the basis of which he can establish the matrimonial offence of adultery, cruelty or desertion, then he is certainly entitled to put forward on alternative prayer for relief under those grounds. We do not for a moment find any defect in the petition as presented not in the manner in which the reliefs have been claimed.

As far as the first charge is concerned, Mr. Rego has taken up through the evidence of the petitioner-husband who pointed out that he had met the respondent- wife pursuant to an advertisement, that he knew very little about her or about her background, that he was working abroad and that, as of necessity, he relied on her in good faith under the assumption that everything about her was good and normal. He stated that as far as his client was concerned, there as no special reason for him to suspect that the respondent-wife was suffering from any type of infirmity. It was only at a subsequent stage when inspite of a considerable amount of sexual relations the respondent-wife did not conceive that the petitioner- husband was required to take her for medical examination and treatment and it was only at this stage that it was discovered that her fallopian tubes were blocked and that, consequently, she was sterlied. The petitioner-husband did even at this stage try his best to rectify the position by seeing to it that she underwent requisite surgical treatment, but inspite of the best medical attention it was impossible to rectify the situation. Mr. Rego submitted that this is a very serious matter and that had the petitioner-husband been aware of this fact, there would have been no question of his contracting the marriage with the respondent-wife because the whole purpose of his entering into the matrimonial bond was in order to have a family. Mr. Rego pointed out that, undoubtedly the respondent-wife denied the charge that she was sterilized. He pointed out to us that unfortunately where the parties are not represented by advocates that errors of this type do take place and that the Court will have to make some degree of allowance for the same. He submitted that where the evidence conclusively makes out a case for that relief that the Court will not deny the petitioner-husband a decree on the sole ground that there was some technical error in the pleadings.

Mr. Pathak has taken us through the evidence with regard to this aspect of the matter and he sought to support the finding of the Family Court to the effect that the petitioner-husband has failed to establish that the respondent-wife has undergone sterilization prior to the marriage. As indicated by us earlier, that is really hot the issue, but the fact of the matter is that the evidence before us does conclusively indicate that the respondent-wife was, in fact, sterile at that point of time and this fact was not made known to the petitioner-husband. This material, in our considered view, is serious enough because it affects the fundamental structure and the very purpose of the marriage and under these circumstances it would be sufficient to vitiate the marriage contract. We need to observe here that while dealing with matrimonial proceedings, the concept of "fraud" as judicially defined and understood is to be taken in a different context to "fraud" in the manner as defined either in criminal law or the requisite ingredient that would make up the charge of fraud in normal civil or criminal proceedings. As far as matrimonial law is concerned, the position that emerges is that if some material which wholly, basically and fundamentally affects the marriage contract is not made known to the Opposite Party, or if the same is suppressed, it would be sufficient for the affected party to pray for vitiation of the marriage contract on this ground. Having regard to this position, in our considered view, the petitioner-husband would be entitled to a decree of nullity of marriage u/s 19 of the Indian divorce Act.

We need to add here that since the petitioner-husband is entitled to succeed under this ground that it is unnecessary for us to discuss the remaining material. It has come on record that the petitioner-husband, who was originally working in Saudi Arabia and who is at present 47 years of age, is now residing in Bombay and that he has not been able to secure any job. It has also come on record that the only asset he possesses is a small flat at Bandra and a reasonable amount of savings. On the other hand, the respondent-wife is reasonably well paid in her job with the Bank of India and she is at present residing with her mother. Under these circumstances, while dissolving the marriage, we do consider that the interest of justice would require that the Court should direct the petitioner-husband to make some reasonable lump sum payment to the respondent-wife as and by way of full and final alimony. In our considered view, a figure of Rs. 50,000/- would meet the ends of justice. Mr. Rego has made a strong plea that his client is not in a position to make this payment and that he will have to take a loan for this purpose. Regardless of that fact, he will have to find the funds, and we are prepared to give him time of 12 weeks for making the payment in question.

In the view that we have taken, Family Court Appeal No. 68 of 1992 succeeds. The petitioner-husband shall be entitled to a decree of nullity declaring the marriage solemnised between him and the respondent-wife at Bombay on 24.2.1979 as null and void u/s 19 of the Indian Divorce Act, 1869. The petitioner-husband is directed to pay to the respondent-wife an amount of Rs. 50,000/- in full and final settlement of all her claims within a period of 12 (twelve) weeks from to-day. Family Court Appeal No. 61 of 1992 fails and the same stands dismissed. In the circumstances of the case, there shall be no order as to costs. Office to draw up the decree accordingly. Issuance of certified copy expedited.